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THE BANGALORE DRAFT CODE OF JUDICIAL CONDUCT
CIVIL LAW COMMENTARY - SOME OBSERVATIONS
The Hon Justice Michael Kirby AC CMG*
GENERAL COMMENTS
1.1
Finding consensus: The commentaries of the judges from civil
law countries on the Bangalore Draft Code of Judicial Conduct (the
Bangalore Draft) are invaluable.
I regret that my obligations to the
International Bioethics Committee prevent my participation in the
meeting in the Hague. There are some significant differences between
the approaches of the judicial group, all comprising judges from
countries substantially or wholly of the common law tradition and judes
of the civil law tradition. If the aim is an international draft acceptable to
both (and any other) traditions, it is self-evidently necessary:

To give way in essentials; and

To confine the Bangalore Draft to truly essential items upon which
consensus can be reached.
*
Justice of the High Court of Australia.
One-time Special
Representative of the Secretary-General of the United Nations for
Human Rights in Cambodia. Rapporteur of the International Judicial
Group.
2.
1.2
Title of document: The commentaries on the "Code", as a title for
the Bangalore Draft, are not unexpected. Many of the commentators in
common law countries have made the same point. In such countries
"code" also means a self-contained document of an imperative nature
containing all of the relevant rules on the particular subject. There were
many objections by judges in Australia to the use of the word "code".
Especially because of the generality of some of the "principles", it seems
highly desirable that the word "code" should be dropped.
Instead, I
would suggest "guidelines". There is a precedent for this. The OECD
Guidelines on Privacy proved extremely influential in the development of
national laws on that subject. The word is softer, less coercive and less
self-implementing than "code". At the upcoming meeting of the Judiical
Group in Colombo, the word "code" should be dropped in light of the civil
law comments.
1.3
The core values: There are some very telling comments, from the
civil law perspective, on the key values to be attained and the ordering of
those values. These are also comments that have been made in some
common law countries.
For example, beginning the Bangalore Draft
with the value of "Propriety" now seems inappropirate. There are more
fundamental values than this. A similar point was made in Bangalore by
Justice Claire l'Heureux Dubé (Canada). This criticism should also be
accepted and the identification and order of the basic values should be
reassessed.
As many of the comments have pointed out, there is
overlap between several of the values. Thus, there is much overlap
3.
between impartiality, independence and integrity. The question is what
are the truly "core" values to be included in the final document.
1.4
Back to UN basics: Various suggestions are made by the civil law
commentators. Some of them are mutually inconsistent. Possibly the
best guidance for us all is to return to the basic statement of the
requirements of a judge as set out in Article 14.1 of the International
Covenant on Civil and Political Rights (ICCPR). Not all countries are
participants in the European Convention system. Not all countries have
regional human rights systems (There is not in the Asic Pacific).
Accordingly, the ICCPR is probably the closest we all come to a basic
core text. Art 14.1 states:
"1.
All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial
tribunal estabilshed by law …".
In light of the civil law comments on the proliferation and overlap
of the core values and their ordering, it might be worth reconsidering the
draft and bringing the subsidiary values under the three fundamental
values mentioned in the ICCPR, namely competence, independence
and impartiality. At least if we stick to them and keep the Bangalore
Draft organised in accordance with the ICCPR, we are building upon,
and elaborating, the most fundamental of United Nations human rights
instruments.
4.
1.5
Prosecutors and judges: A number of the civil law commentaries
urge the incluison of reference to prosecutors. I appreciate that in civil
law countries the prosecutors have a special role in the administration of
justice. Also in common law countries, prosecutors have special and
independent functions. They are not mere servants of the State. They
have independent duties to perform. But they are strictly independent of
the judicial branch. When I served as Special Representative of the
Secretary-General for Human Rights in Cambodia I found that common
law human rights NGOs were shocked by the special status accorded to
prosecutors.
They were scandalised that prosecutors had a higher
bench and were not consigned to equality in the geography of the
courtroom with the accused. This would be an irreconcilable difference
between common law and civil law traditions. So far as the theory of the
common law is concerned (not always reflected in past practice at least),
prosecutors are simply another litigant.
And the courts have little
whatever to do with prosecutorial decisions, very rarely interfering in the
exercise of prosecutorial discretions. If we are to find a unviersal draft, it
will be necessary to treat the competence, independence and integrity of
prosecutors separately from the guidelines governing judicial officers
(judges and members of independent tribunals).
1.6
Implementation: There are some wise comments on the so-called
value of implementation and accountabilitiy (Value VII). These point to
the great differences between different countries in the implementation
of principles of judicial integrity. A similar problem arose twenty years
ago when I chaired the OECD Committee on Privacy. It was possible to
5.
secure agreement on the basic guidelines. It was impossible to secure
agreement on implementation of those guidelines. Putting it generally,
the civil law countries favoured administrative procedures and detailed
regulation.
The common law countries favoured implementation by
independent courts and tribuanls with minimal bureaucracy. In the end,
the guidelines accepted that implementation would follow the traditions
of each country. So it has proved. The result has been successful. The
core values have been held in common but Europe (and the United
Kingdom) have tended to favour data protection authorities. Common
law contries have tended to favour judicial remedies.
Because the
disciplining of judges is very commonly provded for in national
constitutions and in detailed regulation, it may be prudent, in the light of
the civil law commentaries, to delete the supposed value of
implementation and to include references to that subject in an
accompanying document instead of in the Bangalore Draft itself.
1.8.
Explanatory memorandum: This leads to a conclusion that some
of the detail of the present Bangalore Draft should be reduced. There is
a much greater chance of securing consensus internationally if we stick
to the truly core values. This does not mean that the work already done
will be lost.
The Bangalore Draft could be accompanied by an
explanatory memorandum. This would supplement the core values with
detailed commentary on:

The position under judicial codes etc of different countires;

The specific subtopics that arise under the core values;
6.

The particular issues of implementation alongside the basic core
values; and

The ways in which different countries go about implementing the
values.
So
long
as
the
implementation
is
accessible,
independent, fair and effective, we should not be too concerned
about national differences. It is very difficult to change a country's
constitution. That is a reason for avoiding unnecessary provisions
in the Bangalore Draft that challenge constitutional requrements
that tend to proliferate in the subject of judicial standards and
discipline.
1.9
National specificities: Another point that comes out of the civil law
comments is the specificity of the needs of some countries.
specificity may arise from the recent history of such countries.
Such
For
example, countries that have had recent exposure to totalitarian political
regimes with subsequent difficulties of civil order, may have particular
requirements, eg to prohibit association with political parties or to
prohibit particular activities such as gambling by judes. We must aim for
a draft that allows flexibility essential to address specific problems that
arise in these areas.
1.10 Developing/developed countries:
A similar need for flexibility
arises from the great range and variety of the judicial office in different
parts of the world. One of the sub-texts refers to village courts which are
common in many developing countries but not in developed or European
countries. Yet if a very large proportion of disputes is handled before
7.
such courts, any guidelines on judicial conduct must be wide enough to
include them.
The solution again will probably be to delete express
mention of village courts in the guidelines themselves and to include
reference to this topic in the accompanying explanatory memorandum.
PARTICULAR COMMENTS
2.1
Preamble: The suggestion is that this be reduced. I agree. The
reference to the codes of other countries could be transferred to the
explanatory memorandum.
We should anchor our draft in universal
instruments, particularly the ICCPR. There is an interesting comment on
the emergence of European judicial systems from the protective shell of
the administrative state. The common law systems are emerging from a
different shell, possibly because of the same stimulus of universal
human rights. Their shell was one of self-satisfaction, complacency and
inadequate scrutiny of the State and its actors. So far as countries of
the Commonwealth of Nations are concerned, they are not influenced by
"American programmes". Their judiciary follows a strong tradition. But
the earlier United States acceptance of a Bill of Rights has led in that
country to